Court File and Parties

COURT FILE NO.: CR-24-10000112-00MO DATE: 20241106 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R v. ADRIAN MURRAY

BEFORE: S.F. Dunphy J.

COUNSEL: T. Monteiro, for the Crown/Applicant M. Salih, for the Defendant/Respondent

HEARD at Toronto: November 5, 2024

Reasons for Decision – Certiorari and Mandamus

[1] This is an urgent application for certiorari and mandamus brought by the Crown arising from a decision of a Justice of the Peace to strike a bail hearing while the Crown was in the process of cross-examining the defendant’s proposed surety. For the reasons that follow, this application is granted.

[2] When seized of an application for bail governed by s. 515(6) of the Criminal Code, the Justice “shall order that the accused be detained in custody” unless the accused, having been given “a reasonable opportunity to do so” is able to show cause why detention is not justified. A hearing may be adjourned in the circumstances contemplated by s. 516 of the Criminal Code. While there is an unquestionable jurisdiction vested in the Learned Justice to strike proceedings - the equivalent of a mistrial in pre-trial motions and applications – that jurisdiction is not an all-purpose discretionary remedy to allow a “do-over” where a witness proves unsatisfactory or some other element of the evidence failed to materialize as hoped.

[3] The Learned Justice suggested the defence bring a motion to strike a s. 515(6) bail hearing after the surety proposed by the defence unexpected damaged her own credibility “through no fault of the defence”. In those circumstances, the Learned Justice had no basis to assume a jurisdiction granted neither by Parliament nor the common law to strike the proceeding. There was no cognizable prejudice objectively present that could render the continuation of the proceeding contrary to the principles of fundamental justice. There was no impairment to the right of the accused to a fair hearing simply because the hearing did not unfold as hoped due to unforeseen actions of a witness called by the accused.

[4] The harm to the functioning of an already Jordan-stressed criminal justice system by such a practice, were it to be accepted, can readily be appreciated. Court staff, a Justice, a courtroom and Crown Attorney were all assembled to conduct this hearing – a diversion of resources that could otherwise have been used for other participants seeking to vindicate their constitutional rights to reasonable bail and trial within a reasonable time.

[5] The circumstances giving rise to this application may be summarized as follows. Mr. Murray was arrested and released on bail in July 2024 on domestic violence related charges. His release terms included standard non-contact provisions (not to be present in the residence of the complainant nor have any contact with the complainant). On October 6 he was arrested in the complainant’s residence and charged with failure to comply (x 2) and fresh assault and other charges arising from this incident. On October 8 a special bail hearing was scheduled for October 11 at the request of the defence to consider the defendant’s proposed release plan. That hearing was a reverse onus hearing governed by s. 515(6) of the Criminal Code.

[6] The special hearing was convened (via Zoom) as scheduled and the defence called as a witness the proposed surety. While the Crown was cross-examining this witness, the defendant - whose microphone was muted - signaled to the court with his hands. Noticing this, the Justice halted the questioning and requested the accused be sent to a breakout room to confer with his counsel. As it turned out, he merely wanted a short break to use the washroom.

[7] While the Registrar was setting up the break-out room, the surety uttered a profanity directed at Crown counsel, likely unaware her microphone was still live. Defence counsel heard the witness while waiting to be transferred to the break-out room and immediately notified the witness that her microphone was live and directed her to say nothing further until she (i.e. defence counsel) returned. At or shortly after this point, defence counsel was electronically whisked away to the break-out room.

[8] It is not always immediately clear to participants when persons have left a zoom hearing or rejoined it. In the few seconds that followed, the Crown objected to the witness’ slur against her that was made on the record by the witness and the witness denied making the remark. Her denial was contradicted by the fact that her outburst had been both recorded and heard. The Justice admonished her about her language but nothing further was said until defence counsel and the defendant rejoined from the break-out room moments later.

[9] There followed a discussion about what the witness had said and her (recorded) denial of what she had said. The recording was played back in full. The Learned Justice remarked “I understand that …. she didn’t think she was saying that on the record. But, but it was clearly heard. And I heard it. I heard her say, then deny she had said it.” After making these remarks he suggested that the defence might wish to bring an application to strike the proceeding. The lunch break ensued followed by the anticipated defence motion to strike the bail hearing.

[10] Following oral argument from both sides, the Learned Justice noted that “people make comments like that when they get out of court, and it’s not intended for anyone to be heard” and that “it’s probably blowing off steam”. However, he noted that “the problem was that she made that comment, coupled with an immediate denial”.

[11] I set forth below the operative reasons given by the Justice for striking the hearing in full:

Considering the totality of the circumstances, my decision is to grant a motion to strike the bail hearing. It is not the accused's fault that this happened. The surety made a mistake and then she actually did something inappropriate, which was lie, and in those circumstances, it is not something that was in the accused's control. I think counsel tried to warn her not to speak about anything. I am not going to make any excuses for what she did, but it raises problems with respect to fairness in the bail hearing. I mean, I was very clear with Ms. Abboud that I heard her say that and I heard her deny that she said it. So it is a peculiar set of circumstances. Given the accused is in detention, he is presumed innocent and he has the right to request reasonable bail, in my view, those outweigh the other factors, which are legitimate factors having to do with court resources and the Jordan timelines. So the request to strike the bail hearing is granted.

[12] It may not seem “fair” that a witness performed badly on the witness stand through no “fault” of the accused. However, that is not the sort of hearing “fairness” that is the subject of principles of fundamental justice. No accused can control whether or when a witness may lie on the witness stand and doubtless does not plan for the witness to do so. A witness may display dishonesty on the stand or may do so in actions or statements intended to be off the record or even out of court. Evidence of such dishonesty is not inadmissible simply because unanticipated or unplanned. None of this brings into play the principles of fundamental justice (in which case the jurisdiction to strike the proceeding is of course undoubted).

[13] The Justice’s reasons amount to a blanket assertion of discretion to grant the defence a “do-over” where, even if through no “fault” of the accused, a release plan falls apart. The onus on the accused under s. 515(6) is not conditioned on a hearing unfolding as anticipated.

[14] The requested order quashing the decision of the Learned Justice to strike the proceeding is granted and the mandamus in aid requiring the Learned Justice to complete the hearing in accordance with the statutory requirements of s. 515 shall also be granted.

S.F. Dunphy J. Date: November 6, 2024